(PC)Williams v. Runnels et al, No. 2:2006cv02381 - Document 75 (E.D. Cal. 2010)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 1/15/10 ORDERING that the 59 motion for an order directing the USM to comply w/ the court's previous service order is DENIED; the clerk to send pltf forms for service on dft Dial to be completed and returned w/in 60 days, along w/ the Notice of Submission; and RECOMMENDING that the 63 motion for default judgment as a sanction against defendants be denied. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due w/in 21 days.(Yin, K)
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(PC)Williams v. Runnels et al Doc. 75 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 STEVEN WILLIAMS, 11 Plaintiff, 12 13 No. CIV S-06-2381 FCD KJM P vs. D.L. RUNNELS, et al., ORDER AND Defendants. 14 FINDING AND RECOMMENDATIONS / 15 Plaintiff is a prisoner who is proceeding pro se and in forma pauperis. Plaintiff 16 17 seeks relief pursuant to 42 U.S.C. § 1983. He has filed a motion for an order directing the U.S. 18 Marshal to comply with the court’s order to serve defendant Dial. He has also filed a motion for 19 default judgment for (1) “the service of process on defendant Dial” and (2) “the late answer upon 20 [sic] defendants.” Mot. at 1 (Docket No. 63).1 Plaintiff is incorrect to aver that the Marshal has failed to comply with the court’s 21 22 order. Process directed to defendant Dial was returned unserved because the Marshal was 23 unable to locate him. See Docket No. 45. The Marshal’s office has therefore fulfilled its 24 1 25 26 The motion for default judgment has also been docketed as one for sanctions against defendants. The text of the motion is not easy to follow, but it is fairly clear that plaintiff seeks a default judgment as a sanction for perceived delay tactics by the defendants who, unlike Dial, have been served with the second amended complaint. 1 Dockets.Justia.com 1 obligation under the court’s order, and plaintiff must provide additional information to serve 2 Dial. Plaintiff shall promptly seek such information through discovery, the California Public 3 Records Act, Calif. Gov’t Code § 6250, et seq., or other means available to plaintiff. If access to 4 the required information is denied or unreasonably delayed, plaintiff may seek judicial 5 intervention. Plaintiff will have sixty days from the date of this order in which to provide the 6 7 information necessary to serve Dial, along with the completed service documents. Failure to 8 provide the necessary information may result in dismissal of the claims against Dial. The motion 9 to order the Marshal to comply with the court’s previous service order will be denied. The motion for default judgment is also misplaced. First, as to defendant Dial, no 10 11 entry of default is warranted because Dial has not been served with the second amended 12 complaint. As to the other defendants, an entry of default as a sanction for alleged delay tactics 13 is not warranted for several reasons. Primarily, a default judgment would be inappropriate 14 because defendants have not done anything to delay the pace of adjudication in this case. More 15 generally, default is an appropriate sanction only in the most extreme instances of party 16 misconduct or abuse of the judicial process. No such circumstance exists here. Finally, 17 Fed.R.Civ.P. 12(c), which plaintiff cites in support of his motion, does not provide for default 18 judgments or sanctions. For all of these reasons, the court will recommend that the motion for a 19 default judgment be denied. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The motion for an order directing the Marshal to comply with the court’s 22 previous service order (Docket No. 59) is denied; 23 2. The Clerk of the Court is directed to send to plaintiff one USM-285 form, 24 along with an instruction sheet and a copy of the second amended complaint filed March 17, 25 2008; and 26 /// 2 3. Within sixty days from the date of this order, plaintiff shall complete and 1 2 submit the attached Notice of Submission of Documents to the court, with the following 3 documents: 4 a. One completed USM-285 form for defendant Dial; and 5 b. Two copies of the second amended complaint filed March 17, 2008. IT IS HEREBY RECOMMENDED that the motion for default judgment as a 6 7 sanction against defendants (Docket No. 63) be denied. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 10 one days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 13 shall be served and filed within fourteen days after service of the objections. The parties are 14 advised that failure to file objections within the specified time may waive the right to appeal the 15 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 DATED: January 15, 2010. 17 18 19 4 will2381.8e+77C 20 21 22 23 24 25 26 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 STEVEN WILLIAMS, 11 12 13 Plaintiff, No. CIV S-06-2381 FCD KJM P vs. D.L. RUNNELS, et al., 14 NOTICE OF SUBMISSION Defendants. 15 OF DOCUMENTS / 16 Plaintiff hereby submits the following documents in compliance with the court's order filed 17 : 18 completed summons form 19 completed USM-285 forms 20 copies of the Complaint/Amended Complaint 21 DATED: 22 23 Plaintiff 24 25 26
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